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F4 Corporate Fraudulent and Criminal Behaviour Notes
F4 Corporate Fraudulent and Criminal Behaviour Notes
Fraudulent
and
Criminal
Behaviour
CorporateFraudulent
and
Criminal
Behaviour
BRIBERY:
UKBriberyAct2010
-
keyregulatory
document.
Section 7: Failure of commercial organisations to prevent bribery. Offence is committed irrespective of whether
theactsoromissionswhichformpart
of
theoffencetakeplaceintheUKorelsewhere.
Section 9 requires the Secretary of State to publish guidance containing procedures which commercial
organisationscanput
inplace
topreventbribery
Maximumsentence
for
individual:
7-10yearsofimprisonment.
Maximumsentence
for
corporatebody: unlimitedfine.
Note:Companiesoperating
in
bothjurisdictionsmustcomplywithbothacts.
CompaniesActs.993 (1):
If any business of a company is carried on with intent to defraud creditors of the company or creditors of any
other person, or for any fraudulent purpose, every person who is knowingly a party to the carrying on of the
businessinthatmanner
commitsanoffence.
FraudActs.9(2):
Thissectionapplies
toa
business
which
iscarriedon:
a) Byapersonwho
isoutsidethe
reachofsection993CompaniesAct(offenceoffraudulenttrading);
b) Withintenttodefraudcreditors
of
anypersonorforanyotherfraudulentpurpose.
FRAUDULENT
AND
WRONGFUL
TRADING:
Fraudulent trading - carrying on a business with the intention of defrauding creditors or for any fraudulent
purposes. The definition applies to company which is trading, has ceased trading or is in the process of being
woundup.
Wrongfultradingaccordingto
InsolvencyAct1986s.214:
a) Thecompanyhasgone
intoinsolvent
liquidation;
b) At some time before the commencement of winding up of the company, that person knew or ought to have
concluded that there was no reasonable prospect that the company would avoid going into insolvent
liquidation;
c) Thatpersonwasadirector
of
thecompanyatthattime.
Wrongful trading refers to companies that continued to carry on their daily business trading insolvent, that is,
unabletopaytheirdebts
astheyfalldue.
Court will take into account in deciding whether or not the director knew or ought to know that the
companyisinsolvent:
- The general knowledge, skill and experience that may reasonably be expected of a person carrying out the
samefunctionsas
arecarried
outby
thatdirectorinrelationtothecompany;
- Thegeneralknowledge,
skilland
experiencethatthatdirectorhas.
Company Directors Disqualification Act 1986 identifies three categories of conduct which may lead to
disqualificationofa
personfrom
managementofcompanies:
1) Generalmisconduct
with
companies:
b) Persistent breaches of companies legislation in relation to provisions which require any return, account or
other document to be filed with, or notice of any matter to be given to, the Registrar of Companies. S.3
persistentlyin
defaultthat
infiveyearspersonadjudgedguiltyonthreeormoredefaults.
Disqualification
period:
Maximum-5years.
c) Fraud in winding up if person guilty of offence under 993 of Companies Act 2006 or otherwise found guilty
byofficerorliquidator.
Disqualification
period:
Maximum-15years.
2) Insolventcompaniesanddisqualificationforunfitness:
a) Disqualification of directors of companies which have become insolvent, who are found by the court to be
unfittobedirectors.
Disqualification
period:
Minimum-2
years.Maximum-15years.
b) Disqualification
afterinvestigationof
accompanyunderCompaniesAct1985.
Disqualification
period:
Maximum-15years.
3) Othercasesfordisqualification:
a) Participationinfraudulentor
wrongful
tradingunders.213ors.214InsolvencyAct1986;
b) Undischarged
bankruptsacting
asdirectorspers.11oftheCompanyDirectorsDisqualificationAct
1986;
c) Failure to pay under a county court administration order per s.11 of the Company Directors Disqualification
Act1986.
Anyonewhoactsin
contraventionof
a
disqualificationorderisliable:
- Toimprisonment
for
up
to
two
yearsand/orafine,onconvictionorindictment;
- To imprisonment for up to six months and/or a fine not exceeding the statutory maximum, a summary
conviction.